SENATOR CARL LEVEN ON THE FALL OF ENRON REMINDERS

The following excerpt is from U.S. Senator Carl Leven's website:

Important Reminders from Enron's Fall

12-09-2011

Ten years ago this month, Enron collapsed, bankrupting the seventh largest U.S. corporation at the time and ripping away the mask from a massive and damaging corporate fraud.

This is a good time to reflect on what happened a decade ago and how many of the misdeeds that led to Enron’s collapse are still far too prevalent today. We shouldn’t forget how the culture of Enron – built on outsized corporate pay, conflicts of interest, tax evasion, financial engineering, and hidden debt – did so much harm to so many, and nearly brought the global economy to its knees. That culture is still too big a part of our financial system.

The Senate Permanent Subcommittee on Investigations, which I chair, released reports on the failure of Enron’s board members to safeguard shareholder interests; actions taken by major financial institutions to help Enron cook its books; and Enron’s use of financial engineering to make its financial results look better than they were, while evading taxes.

The findings we reached in the aftermath of Enron’s demise are worth keeping in mind as we consider our economic future. Why should we remember Enron?

• Runaway executive pay.  Enron paid its CEO Ken Lay $140 million in 2000, including $123 million in stock options. Enron set the standard for outrageous CEO pay, and demonstrated how, in search of ever-larger paychecks, CEOs can lead companies into ever-riskier schemes that endanger not just shareholders, but the economy as a whole.

• Tax evasion.  Despite reporting huge profits, Enron paid no taxes in four of its last five years and used tax scams and offshore shell entities to dodge paying its fair share.  Today, dozens of U.S. corporations use similar tactics not only to dodge Uncle Sam, but claim huge tax rebates. Enron was a catalyst for today’s corporate tax cheats.

• Corporate conflicts of interest. Enron’s chief financial officer profited by using his own company, LJM, to do deals with Enron to cook its books. Heedless of Enron’s example, banks such as Goldman Sachs and Citi later set up synthetic securities, sold shares to clients, and profited by betting against their own clients.  Enron helped create a culture of corporations failing to do right by their clients.

• Accounting conflicts.  Enron’s accounting firm, Arthur Andersen, approved financial statements loaded up with fraud. Despite Enron’s cautionary tale, so did accountants for Madoff Securities, Olympus, and other firms that have collapsed in years since, damaging investors, consumers and market stability. Enron showed how accountants reliant on revenues from clients can be convinced to look the other way. It’s still happening today.

• Credit rating conflicts. Credit rating agencies gave Enron AAA ratings until it collapsed. They have given the same AAA ratings to toxic securities, failing corporations, and deadbeat banks, often because issuing tougher ratings would cost them business. Enron exposed the unreliability of credit rating agencies that place the search for market share above the need for objective analysis. 

• Excessive speculation.  Enron speculated and manipulated electricity prices for big profits. Today, speculators whipsaw the American economy with roller coaster energy, metal, and food prices.  Enron jacked up the commodity business to everyone’s detriment but the speculators; and without tough enforcement of anti-speculation laws, the damage will continue.

• Financial engineering. Enron designed countless financial engineering gimmicks that served its financial interests but endangered clients and investors.  Today, financial firms rave about financial “innovations,” while pushing toxic products like auction securities, naked credit default swaps, and worse.  Enron showed how financial engineering creates weapons of mass destruction; a decade later, exotic financial products helped bring the U.S. economy to its knees.

• The need for regulators to stop the madness.  In response to Enron, the Sarbanes-Oxley Act banned multimillion-dollar corporate loans to corporate insiders, forced CEOs to certify their internal financial controls, and created new accounting oversight.  Those changes helped curb Enron-style abuses. Congress continued the cleanup in 2010 with Wall Street reform legislation, but much more needs to be done.  All of us should keep Enron in mind as financial regulators work to turn the law we passed into strong rules that can build new protections for consumers and the economy.

SEC COMMISSIONER GALLAGHER SPEAKS AT OPEN MEETING ON PUBLIC COMPANY ACCOUNTING OVERSIGHT BOARD'S PROPOSED 2012 BUDGET

The following excerpt is from the SEC website:

"Thank you, Chairman Schapiro. I would like to echo the gratitude already expressed by my fellow commissioners to the staffs of the PCAOB and SEC for their hard work, and I would also like to thank Chairman Doty and his fellow board members for being here today.

As has been noted, section 109(b) of the Sarbanes-Oxley Act requires that the PCAOB’s budget be approved by the Securities and Exchange Commission.

It would have been possible to approve the Board’s annual budget and accounting support fee in a non-public process, but I believe it is important that the Commission exercise its approval authority in the uniquely public manner that an open meeting affords us. Indeed, as Chairman Doty recognized, the PCAOB support fees, like many other regulatory fees, are ultimately paid by investors and so this is highly important. I want to thank Chairman Schapiro for finding time on our very busy calendar to hold this meeting.

Congress provided that the Board should be funded primarily through an accounting support fee (Sec. 109(c)(1)). That means the appropriations process by which the Congress oversees the SEC and many other Government departments and agencies does not apply to the Board’s accounting support fee, and so has no potential to constrain the Board’s budget or guide the various activities it funds. The role Congress has assigned to the Commission, then, is essentially to stand in the Congress’s stead in ensuring that the Board raises and spends its funds in the best interest of the investing public and, thereby, that of accounting profession as a whole.

Having reached the end of its review process for the PCAOB’s 2012 budget, the Commission’s staff, represented this morning by the Office of the Chief Accountant, recommends that the Commission approve the Board’s budget – and I am happy to play my part in doing so.

But, consistent with our responsibility, I want to join my colleagues in raising certain questions, which I’ll direct to Jim Kroeker, our Chief Accountant, and Jim Doty, the Board’s Chairman, as appropriate."

EMPLOYEE OF DATA STORAGE COMPANY CHARGED WITH INSIDER TRADING

The following is from the SEC website:

January 17, 2012

"The Securities and Exchange Commission today charged a sales director at Santa Ana, Calif.-based data storage manufacturer STEC Inc. with insider trading in company securities based on non-public information he learned on the job.

The SEC’s complaint filed in the U.S. District Court for the Central District of California, alleges that Farzin Bazshushtari, who lives in Mission Viejo and is STEC’s Director of Industrial Distribution, purchased 7,000 STEC shares on April 27, 2009, after learning about STEC’s positive first quarter financial results. When those results were announced publicly on May 11, STEC’s stock price jumped 30 percent.

The SEC further alleges that Bazshushtari purchased another 5,500 shares on May 27, 2009, after seeing internal weekly sales reports indicating that STEC would outperform second quarter guidance. He additionally purchased 200 STEC call options on June 10. When the company publicly increased second quarter revenue guidance on June 16 to reflect the surging sales, STEC’s stock price jumped 26 percent.

According to the SEC’s complaint, Bazshushtari made total profits of $76,676.50 by trading on inside information. Bazshushtari knew that he violated company policies when he placed the trades. His April 27 purchase was made during a “blackout” period when STEC employees were prohibited from trading in company stock. He purchased STEC call options despite STEC employees being prohibited from trading in STEC options, which give holders the right to buy or sell shares in the future. Bazshushtari further violated STEC’s written insider trading and ethics policies when he traded on margin and held his STEC securities in a margin account.

Bazshushtari agreed to settle the SEC’s charges by paying $76,676.50 in disgorgement and a $76,676.50 penalty. Bazshushtari also has consented without admitting or denying the SEC’s allegations to a permanent injunction from further violations of Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder.

UBS ADVISORY ARM CHARGED BY SEC WITH MICONDUCT

The following excerpt is from the SEC website:

“Washington, D.C., Jan. 17, 2012 – The Securities and Exchange Commission today charged an investment advisory arm of UBS with failing to properly price securities in three mutual funds that it managed, resulting in a misstatement to investors of the net asset values (NAVs) of those funds. The misconduct was revealed during the course of an SEC examination, minimizing investor harm.

The SEC’s Enforcement Division began investigating UBS Global Asset Management (UBSGAM) following a referral from SEC examiners who conducted a routine exam of the firm, which is an SEC-registered investment adviser. The SEC’s investigation further determined that during a two-week period, UBSGAM did not follow the mutual funds’ fair valuation procedures in pricing certain illiquid fixed-income securities in the portfolios of the mutual funds.

UBSGAM agreed to pay $300,000 to settle the SEC’s charges.
“UBS Global Asset Management failed to fulfill one of its core delegated responsibilities on behalf of mutual funds it advises – to price securities in the mutual funds accurately,” said Merri Jo Gillette, Regional Director of the SEC’s Chicago Regional Office.

“Fortunately this misconduct was brought to light quickly, so the duration was short and the harm to investors minimal.”

According to the SEC’s order instituting administrative proceedings against UBSGAM, the firm purchased on behalf of the mutual funds approximately 54 complex fixed-income securities in June 2008 at an aggregate purchase price of approximately $22 million. Most of the securities were part of subordinated tranches of nonagency mortgage-backed securities whose underlying collateral generally consisted of mortgages that did not conform to the requirements necessary for inclusion in mortgage-backed securities guaranteed or issued by Ginnie Mae, Fannie Mae, or Freddie Mac. The securities purchased also included asset-backed securities and collateralized debt obligations.

The SEC’s order finds that following the purchases, all but six of the securities were then valued at prices substantially in excess of the transaction prices, including many at least 100 percent higher. The valuations used by UBSGAM were provided by pricing sources (broker-dealers or a third-party pricing service) that did not appear to take into account the prices at which the mutual funds had purchased the securities. Some of the broker-dealer quotations were based on the previous month-end pricing; other quotes were stale and not priced daily. UBSGAM did not price the securities at fair value until it held a meeting of the firm’s Global Valuation Committee more than two weeks after UBSGAM began receiving “price tolerance reports” identifying the discrepancies between the purchase prices and the valuation of the securities based on the pricing sources. By using the valuations provided by broker-dealers or a third-party pricing service instead of the transaction prices, UBSGAM caused the mutual funds to not follow their own written valuation procedures. These procedures required the securities to be valued at the transaction price until UBSGAM received a response to a price challenge based on the discrepancy identified in the price tolerance report, or UBSGAM made a fair value determination. The procedures provided that the transaction price could be used for up to five business days until a decision needed to be made to determine the fair value. By failing to implement these procedures, UBSGAM aided and abetted and caused the funds to violate Rule 38a-1 under the Investment Company Act.

The SEC’s order further finds that because the securities were not properly or timely priced at fair value, the NAVs of the funds were misstated between one cent and 10 cents per share for several days in June 2008. Consequently, the mutual funds sold, purchased, and redeemed their shares based on inaccurately high NAVs on those days. UBSGAM thus aided and abetted and caused the funds to violate Rule 22c-1 adopted pursuant to Section 22(c) of the Investment Company Act.

In settling the charges without admitting or denying the SEC’s findings, UBSGAM agreed to be censured and to pay a $300,000 penalty, and also consented to a cease-and- desist order from committing or causing violations of Rules 22c-1 and 38a-1 under the Investment Company Act. The SEC acknowledges the assistance and cooperation of UBSGAM during the examination and investigation.

The SEC’s investigation was conducted by Jamie Davidson, Marlene Key, Steven Levine, and Eric Phillips of the Chicago Regional Office. The SEC examination team that referred the matter to enforcement officials included Maureen Dempsey, Matthew Harris, Leora Hughes, Stanton Nelson, and Susan Weis of the Chicago Regional Office.”

SEC COMMISSIONER JOHN GALLAGHER MAKES REMARKS AT SRO OUTREACH CONFERENCE

The following excerpt is from the SEC website:

"Thank you, John, for that kind introduction. I would first like to thank Robert Cook and Carlo di Florio for inviting me, and would like to thank them both for their leadership in conceiving of and planning this important event. And thank you to all of the members of the SRO community who are attending today. You are literally on the front line of the securities markets, and your wisdom and feedback are incredibly important to the Commission as we wrestle with issues impacting the markets.And, as you would expect, I need to tell you that my remarks today are my own and do not necessarily reflect the views of the Commission or my fellow Commissioners.

The title of this Conference is “Collaboration, Cooperation, and Oversight,” and it has been described to me by my friend John Polise as designed to foster dialogue with the SROs in an environment where both the SROs and the SEC can discuss candidly their relationship. I was heartened to hear about this drive for collaboration. Simply put, we are at a crossroads with respect to the status of self regulation. Forums like this should produce concrete results that further the incredibly important relationship between the SEC and SROs. Do not waste this opportunity. The dialogue should be open and honest, and it needs to flow in both directions.

And given the dynamism in the markets, the continued changes in the SRO community, and the massive legislative and regulatory changes in recent years, it is critically important that this dialogue be nurtured and continued.

After all, our interests as regulators should be aligned, but to do so we also need to make sure that as our markets and the regulation of those markets continue to develop, we do not let habit, past practice and provincialism get in the way of sound, effective, and vigorous markets oversight. Importantly also, we need to insure that as much as possible the SEC speaks clearly, consistently, and with a single voice in dealing the SROs it oversees.

The SRO structure is a bedrock of the US scheme of securities regulation. It should be fostered, not eroded in an effort to make the SROs into “deputy SECs” — let’s not forget about the “S” in SRO. To be sure, the SEC must be able to vigorously carry out its duty to oversee the SROs. But, if this regulatory construct is to survive and flourish, SEC oversight must be conducted in a way that respects the unique missions and market structures of the various SROs. And if this is not possible, then we need to ask ourselves even deeper questions, such as:

• Should we have exchanges with statutory self regulatory responsibilities when, in fact, the vast majority of those responsibilities have been outsourced to another SRO?
   
• What limits, if any, should the Commission impose on the ability of SROs to contract with others?

Fortunately, the Commission had the prescience in 2004 to raise very similar questions in its SRO concept release. Although the issues discussed in that release require a substantial updating in light of the consolidations, demutualizations, and IPOs of various SROs in the last several years, the basic regulatory questions remain the same. Regardless of the answers to the questions I just posed, it may well be time for the Commission to dust off and reconsider many of the issues raised in the 2004 release.

In conclusion, I hope that today is the beginning of a new era of SEC/SRO relations. I am confident that under the stewardship of Carlo and Robert, this can be the case. I can tell you that I am very interested in these issues, and I look forward to working with the SEC staff and the SROs as the issues discussed today and other, bigger picture, issues are debated."

SEC AMENDS COMPLAINT AGAINST THREE SWISS BUSINESSES IN ARCH CHEMICALS INC., INSIDER TRADING CASE

The following excerpt is from the SEC website:

“The Securities and Exchange Commission announced today that it has filed an amended complaint in a pending action against three Swiss-based entities previously charged with insider trading. On July 15, 2011, the Commission filed a complaint charging defendants Compania International Financiera S.A. (Compania”), Coudree Capital Gestion S.A. (“Coudree”), and Chartwell Asset Management Services (“Chartwell”) with insider trading in violation of Section 10(b) of the Exchange Act, alleging that the defendants traded ahead of a July 11, 2011 public announcement that Swiss-based Lonza Group Ltd. would acquire Connecticut-based Arch Chemicals, Inc.
Today the Commission filed an amended complaint adding an additional claim for relief under the tender offer antifraud provisions of the Exchange Act, specifically Section 14(e) and Rule 14e-3 thereunder. The Commission amended its complaint because the Lonza acquisition of Arch Chemicals was in the form of a tender offer. The Commission’s amended complaint now charges the defendants with violating Sections 10(b) and 14(e) of the Securities Exchange Act of 1934 and Rules 10b-5 and Rule 14e-3. The amended complaint seeks permanent injunctions, disgorgement of illegal trading profits plus prejudgment interest, and civil monetary penalties.
The Commission’s action remains pending.”